Court dismissed pension claim as Headmaster did not meet five-year duty allowance requirement for inclusion.

[*1401] 1968 December 3

REVISIONAL JURISDICTION

In the matter of Article 146 of the constitution

Micheal Mitsikourides,

Applicant,

And

The Republic of Cyprus, through

The Council of Ministers,

Respondent.

(Case No. 21/67)

Elementary Education - Headmaster's duty allowance - Pension and Gratuity - Basis of computation of in instances where Headmaster was in receipt of duty allowance - Section 37 of Law No. 7 of 1963 of the Greek Communal Chamber (as set out in section 3 of Law No. 1 of 1964) and section 45 of the Elementary Education Law Cap. 166.

Headmaster’s Duty Allowance - See under “Elementary Education”.

L. Clerides, for the Applicant.

L. Loucaides, Counsel of the Republic, for the Respondent.

JUDGMENT

The following Judgment was delivered by:

LOIZOU, J.: By this recourse the Applicant seeks “a declaration of the Court that the decision of the Council of Ministers embodied in a letter addressed to Applicant on the 12.11.1966 received by him on the 13.11.1966 regarding the pensionable emoluments and/or gratuity payable to Applicant by virtue of his acting as a Headmaster from 1.9.1960, is null and void and of no effect whatsoever”. [*1402]

The Applicant served as an elementary school-teacher for a period of over 30 years and he retired as a Headmaster, Grade B, on the 31st August, 1966. He had been serving as a Headmaster, Grade B, for six years prior to his retirement i.e. from the 1st September, 1960 to the 31st August, 1966. Prior to the enactment of Law 7 of 1963 of the Greek Communal Chamber, which was published in the Gazette of the 4th July, 1963> the salary of the Applicant as a Headmaster, Grade B, was £798 per annum which included a sum of £96 which was payable as Headmaster’s duty allowance. With the enactment of Law 7 of 1963, new salary scales came into force and the salary scale of the post of Headmaster, Grade B, under this Law was £606x24-£774. However, section 37 of the Law saved the right of elementary school-teachers whose basic salary, including the Headmaster's duty allowance, was higher than the new salary scales and they were, by virtue of this section, to continue to receive the higher salary; but section 37 was repealed and substituted by section 3 of Law

1 of 1964 of the Greek D Communal Chamber which was published in the Gazette of the 27th March, 1964. The new section reads as follows:

“37. Ο βασικός μισθός ον λαμβάνουν διδάσκαλοι κατά την ψήφισιν του

παρόντος Νόμου και εάν ακόμη είναι υψηλότερος εκείνου ον έδει να λαμβάνωσιν επί

τη βάσει του παρόντος Νόμου δεν θα επηρεασθή."

Law 1 of 1964 was given retrospective effect as from the date of the enactment of the principal law (Law 7 of 1963).

It is to be noted that by the 1964 amendment the words “inclusive of the Headmaster’s allowance" which followed the words "basic salary" were omitted from section 37. [*1403]

It is common ground that on his retirement Applicant’s pension and gratuity were calculated on the basis of the new salary scale i.e. £7714- and not £798. To this the Applicant objected by his letter dated 8th October, 1966 (exhibit 5). On the 12th November, 1966, the Applicant received a reply to his objection from the Ministry of Education; it is the letter exhibit 6 and it reads as follows:

"Εις απάντησιν επιστολής σας 8/10/66 λυπούμαι να σας πληροφορήσω, ότι η απόφασις

του Υπουργικού Συμβουλίου δεν καλύπτει την περίπτωσίν σας. Αύτη έχει ως έξης:

Το

Συμβούλιον απεφάσισεν όπως εγκρίνη όπως αι συντάξεις των Διευθυντών των

Δημοτικών Σχο­λείων, οι οποίοι είχον μέχρι της 1ης Σεπτεμβρίου, 1963

συμπληρώσει συνολικήν υπηρεσίαν πέντε ετών εις θέσεις δια τας οποίας ήτο πληρωτέον επίδομα διευθύνσεως

και ούτω απέκτησαν το δικαίωμα όπως ο μέσος όρος του επιδόματος τούτου θεωρηθή

ως συντάξιμος απολαβή δυνάμει του άρθρου 45 του περί Στοιχειώδους Παιδείας,

Νόμου, Κεφ. 166, αι τοιαύται δε απολαβαί ήσαν υψηλότεραι των συνταξίμων

απολαβών αυτών επί τη βάσει των νέων μισθοδοτικών κλιμάκων, υπολογισθώσιν επί

των πρώτων συνταξίμων απολαβών και η πληρωμή της διαφοράς γίνη χαριστικώς

μέχρις ότου το θέμα τούτο κανονισθή δια νόμου.

Εις την περίπτωσιν σας εισεπράττετε επίδομα διευθύνσεως από 1/9/60

μέχρι 31/8/63, ότε ετέθησαν εν ισχύϊ αι νέαι μισθολογικαί κλίμακες. Συνεπώς δεν

ήτο δυνατόν να υπολογισθή η σύνταξις επί των [*1404] παλαιών απολαβών σας εφ'

όσον δεν εισπράττετε επίδομα διευθύνσεως επί πενταετίαν."

It is the decision of the Council of Ministers contained in the above letter that the Applicant challenges by this recourse.

The Application is based on the following grounds

"The Supreme Court has exclusive jurisdiction to declare any act and/or decision of any organ exercising executive or administrative authority null and void if it is contrary to the provisions of any law or the Constitution.”

“Likewise a decision may be annulled if it is discriminatory i.e. contrary to Arts. 6 and 28 of the Constitution.”

"It is contended that the decision of the Council of Ministers is contrary to Arts. 6 & 28 & 192 of the Constitution as well as section 45 of Cap. 166".

The Opposition, on the other hand, is based on the following grounds of law:

(a). The decision challenged was lawfully taken on the basis of the facts of the case.

(b) The said decision does not in any way contravene the provisions of Arts. 5, 28 or 192 of the Constitution or section 45 of Cap. 166.

It may be stated at this stage that learned counsel for the Applicant made no allegation, in the course of his [*1405] address, that there has been any discrimination against the Applicant and no reference at all to Articles 6 and 28 of the Constitution; nor did he allege or attempt to establish the practice to which he refers at paragraph 3 of the facts relied upon in support of his Application - and which, he alleges in the said paragraph, amounts to a vested right under Article 192 of the Constitution - to the effect that before 1960 "if a Headmaster completed three years’ service as a Headmaster he was entitled to have the extra allowance payable to him as a Headmaster, as pensionable". And in fact on the material placed before the Court, there is not the shadow of a suspicion that there has been any discrimination against the Applicant; and in so far as Article 192 of the Constitution is concerned it is quite clear that the Applicant was not "immediately before the coming into operation of the Constitution" performing the duties of a Headmaster nor was he receiving any duty allowance and it, therefore, follows that the provisions of section 145 of Cap. 166 regarding the computation of the pension and gratuity where duty allowance was payable were not at the time applicable to him.

It was, however, contended on the part of the Applicant that in view of the provisions of section 37 of Law 7 of 1963 the calculation of Applicant’s pension and gratuity should have been made on the basis of £798 and not on the basis of £774 Learned counsel for the Applicant after referring to section U5 of the Elementary Education Law (Cap.166) submitted that the fact that the Applicant received duty allowance for three years only did not matter because although from 1963 he was not receiving any duty [*1406] .allowance such duty allowance was included in his salary "as a vested right under section 37”.

I find myself unable to agree with learned counsel’ contention and submission. In so far as section 37 is concerned, as stated earlier on, it was repealed and substituted by the 1964 amendment and the words 'Headmaster’s allowance, were deleted from the section and. only the basic salary where it happened to be higher than the salary provided under the new salary scales, was saved thereby; and this with effect from the date of the enactment of the principal law.

Let us now for one moment turn to section 45 of the Elementary Education Law, Cap.166, Such section is included in part V. of the law which deals with the retirement and pensions of teachers.

Under this section (as set out, in section 2 of Law 21 of 1359) the word. 11 salary11 is defined as follows:

“’Salary’ with respect to any teacher shall include a portion of the cost-of-living allowance paid to such teacher for the time being amounting to twelve and one half per centum of the salary of 11 such teacher but shall otherwise be exclusive of allowances:”

"Provided that where a teacher has during the course of his service held posts in respect of which a duty allowance is payable for an aggregate period of not less than five years the Governor may direct that, for the purposes of computing pension, gratuity or benevolent grant the salary [*1407] shall be enhanced by a sum equal to the average of the allowance payable at the time of such computation in respect of the posts held during the last five years of the aggregate period:"

Then follows a second proviso which is not relevant for the purposes of this case.

In fact (except where he held a post in respect of which duty allowance was payable for an aggregate period of not less than five years) a teacher's “salary” never included any allowance for pension and gratuity purposes since what is now numbered as section U5 was first introduced in 1944 (by section 21 of Law 3 of 1944); and the position has remained substantially the same until Law No. 19 of 1967 was enacted.

In the light of the above and in view of the fact that the Applicant held a post in respect of which duty allowance was payable for a period of less than five years, in fact for three years only, and he was not in receipt of such allowance at the time of the computation of his pension and gratuity, he did not, in my opinion, qualify to have his pension and gratuity computed on the basis of £798 which sum included £96 Headmaster's duty allowance.

The obvious scope of the decision of the Council of Ministers challenged by the present recourse was to protect the rights acquired, by virtue of the provisions of section 45 of Cap. 166, by those elementary school-teachers who had until the 1st September, 1963 completed an aggregate of not less than five years’ service in posts in which duty allowance was payable. The Applicant quite clearly never acquired such a [*1408] right and, in my opinion, his pension and gratuity were correctly computed on the basis of his pensionable emoluments at the time of his retirement without taking into account the duty allowance.

For all the above reasons this recourse must fail.

Recourse dismissed

with costs.